Publication Ban Directive
WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.
(2.1) The offences for the purposes of subsection (2) are
(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or
(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
(4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
(7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
(8) An order may be subject to any conditions that the judge or justice thinks fit.
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15; 2015, c. 13, s. 19
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
Court of Appeal for Ontario
DATE: 20220124 DOCKET: C68054
Watt, Pardu and Trotter JJ.A.
BETWEEN
Her Majesty the Queen Appellant
and
Thomas Straub Respondent
Counsel: Stacey D. Young, for the appellant Jessica Zita, for the respondent
Heard: June 30, 2021 by video conference
On appeal from the sentence imposed on January 23, 2020 by Justice Robert W. Beninger of the Ontario Court of Justice.
Reasons for Judgment
Watt J.A.:
[1] Thomas Straub is a dangerous offender. Many dangerous offenders receive the most extreme and clearest form of preventive sentence that our law permits, a sentence of indeterminate detention in a penitentiary. Thomas Straub is not among them.
[2] The sentencing judge at Thomas Straub’s dangerous offender hearing concluded that the public could be adequately protected against Thomas Straub’s violent recidivism by a sentencing disposition less than a sentence of indeterminate detention. The judge imposed a composite sentence: imprisonment for a term of five years, to be followed by a long-term supervision order (LTSO) for a further ten years.
[3] The Crown says that the sentence imposed does not adequately protect the public against Thomas Straub’s well-established propensity for committing violent offences against others. What is required, the Crown contends, is a sentence of indeterminate detention in a penitentiary. Only the most extreme and clearest form of preventive sentence will provide the degree of protection necessary under the legislation.
[4] These reasons explain why I agree that the sentence imposed cannot stand. I would allow the appeal, set aside the sentence imposed at the conclusion of the dangerous offender application and substitute a sentence of indeterminate detention in a penitentiary.
The Background Facts
[5] A brief summary of the circumstances of the predicate offences and of relevant aspects of the dangerous offender proceedings will provide the background necessary to evaluate the merits of the Crown’s appeal from the sentence imposed.
The Predicate Offences
[6] The predicate offences include two counts of robbery and single counts of unlawful confinement, assault with a weapon, and breach of probation. They arose out of two incidents a few hours apart. In each case, the attack occurred in a public area. The respondent’s target in both attacks was a woman, a complete stranger.
[7] The first incident involved a woman who was standing by herself waiting for a bus at a bus stop. The respondent, armed with a knife, grabbed her from behind. He demanded her cellphone. She refused. The respondent pushed her into a vacant building, then threw her to the floor. The victim escaped but dropped her cellphone. The respondent picked it up and disappeared into the interior of the vacant building. The victim suffered minor injuries.
[8] The victim’s screams attracted the attention of two men who were across the street. They ran over to the vacant building and went inside. They confronted the respondent who tried to stab one of them with a knife with an eight-inch blade. The man was not injured, the blade caught on his jacket. The respondent fled.
[9] A few hours later, the respondent confronted another woman who was waiting alone in a church parking lot. Once again, armed with a knife, the respondent demanded her cellphone. Once again, she refused. The respondent knocked her down and grabbed a bag she was carrying containing several personal items. The respondent fled with the bag.
[10] Later that same day, police saw the respondent walking alone along the street in an area not far away from where the attacks had occurred. He was arrested at gunpoint and searched. Police found the first victim’s cellphone and a kitchen knife with an eight-inch blade. The respondent was bound by the terms of several probation orders when he was arrested.
The Dangerous Offender Proceedings
[11] The Crown obtained the consent necessary to initiate dangerous offender proceedings against the respondent and an assessment order authorizing preparation of a report for the hearing of the application. The report was prepared by Dr. Jonathan Rootenberg, an experienced forensic psychiatrist.
[12] The sentencing judge received extensive written materials on the hearing of the application. The materials included assessment reports, materials from the Correctional Service of Canada (CSC), probation reports and medical records. Transcripts and particulars of the respondent’s prior convictions. Misconduct Reports from the provincial facility in which the respondent was housed since arrest. An Agreed Statement of Facts describing the respondent’s conduct towards his prior counsel and a letter written to the Crown with conduct of the dangerous offender proceedings.
[13] The Crown called several witnesses at the hearing. Dr. Rootenberg, the author of the assessment report. Witnesses also testified about the respondent’s misconduct as the dangerous offender proceedings unfolded, including threatened sexual assaults of female correctional and probation officers.
[14] An Agreed Statement of Facts described two incidents involving the respondent and his former counsel. When counsel met with the respondent in the cell area of the courthouse to speak with him after a court appearance, counsel terminated the interview when she began to suspect the respondent was masturbating as they spoke. Counsel ceased to represent the respondent after he sent her a letter explaining about how he would break into her house, stab her, tie her up in her bedroom, sexually assault her, abandon her after flooding her home, and steal her car to escape.
[15] The respondent also sent a letter to the Crown who was conducting the dangerous offender proceedings. The respondent catalogued a lengthy history of voyeurism which began when he was eight years old and continued throughout his adult life. He explained that his attack on his first victim was sexually motivated, not to steal her cellphone.
[16] Dr. Rootenberg concluded that the respondent did not suffer from a major mental illness. However, the doctor identified two disorders which emerged from various tests he had administered and his own interviews of the respondent. The first, substance use disorder, was in remission in the correctional setting in which the respondent was housed. The second, antisocial personality disorder, remained.
[17] Dr. Rootenberg was satisfied that from a psychiatric perspective, the respondent met the criteria required for designation as a dangerous offender.
The Dangerous Offender Finding
[18] The sentencing judge was satisfied that the respondent was a dangerous offender. He explained his conclusion in these terms:
On a totality of the evidence, I find that the Crown has proven beyond a reasonable doubt that all the criteria of a dangerous offender designation have been met. Pursuant to s. 753(1), I am required to make a finding of a dangerous offender designation.
[19] The finding appears to be grounded on satisfaction on the standards set by ss. 753(1)(a)(i) and (ii) of the Criminal Code, R.S.C., 1985, c. C-46, rather than s. 753(1)(a)(iii) about which Dr. Rootenberg expressed no opinion, or s. 753(1)(b).
The Submissions on Sentence
[20] Before the sentencing judge, Crown counsel sought a sentence of indeterminate detention in a penitentiary.
[21] Counsel for the respondent sought a composite sentence which included a term of imprisonment of five years, followed by an LTSO of five to seven years duration.
The Sentence Imposed
[22] In order to protect the public from the likelihood of the appellant’s violent recidivism, the sentencing judge considered it necessary to sentence the respondent to a penitentiary term that would allow the respondent to participate in all the programming offered by the CSC. The judge concluded:
I have considered the totality of the evidentiary record at this hearing. I am satisfied that the overall sentence can adequately protect the public. The respondent has the ability to participate in, and benefit from, treatment. Dr. Rootenberg’s report sets out a detailed plan for managing the respondent in the community. The CSC has the tools to manage and enforce a release plan in the community.
The Appeal
[23] Dangerous offender proceedings involve two stages. The first is designation. The second is penalty. This appeal involves only the second stage, the sentencing of the respondent as a dangerous offender.
[24] The Crown appeals the composite sentence imposed by the sentencing judge. She asks that we set aside that sentence and replace it with a sentence of indeterminate detention in a penitentiary.
[25] Section 759(2) of the Criminal Code limits appeals by the Crown from decisions made in dangerous or long-term offender proceedings to grounds of law. In this case, the Crown says that the sentencing judge made three errors. He failed to impose a sentence that gave effect to the purpose of the dangerous offender regime. He failed to consider evidence that the respondent could not be controlled in the community. And he applied the wrong standard in deciding that a composite sentence, combining a determinate penitentiary sentence with an LTSO, was the appropriate sentencing disposition.
[26] For the purposes of the discussion that follows, I would consolidate the grounds of appeal advanced into a single compendious ground. I would frame that ground as an error in assessing the evidence on the basis of the wrong legal principle. This involves a question of law: R. v. H.(J.M.), 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 29.
The Background
[27] After finding the respondent met the requirements of ss. 753(1)(a)(i) and (ii) to be designated a dangerous offender, the sentencing judge turned to the penalty stage governed by ss. 753(4) and (4.1). Section 753(4.1) requires a sentencing judge to impose an indeterminate sentence to be served in the penitentiary unless the judge is satisfied by the evidence adduced at the hearing that there is a reasonable expectation that some lesser sentencing measure will adequately protect the public against the offender’s commission of murder or a serious personal injury offence.
[28] In this case, for all practical purposes, the issue at the penalty stage was whether the sentencing disposition would be detention in a penitentiary for an indeterminate period or a determinate term of imprisonment of more than two years followed by an LTSO of not more than ten years. The resolution of that question depended upon whether the evidence adduced at the hearing satisfied the standard put in place by s. 753(4.1) – “a reasonable expectation that a lesser measure [a composite sentence of imprisonment and an LTSO] will adequately protect the public against the commission by the offender of murder or a serious personal injury offence”.
[29] The principal evidence that informed the penalty decision was the evidence of Dr. Rootenberg, the forensic psychiatrist who completed the assessment report. Dr. Rootenberg was called by the Crown at the hearing. The defence called no evidence. The sentencing judge said that he placed the greatest weight on Dr. Rootenberg’s evidence in reaching his decision on penalty.
The Expert Evidence
[30] In his assessment report on testimony, Dr. Rootenberg developed a composite assessment of the risk of recidivism by the respondent. The assessment was based on actuarial and clinical factors. The risk that the respondent would commit violent acts was high. Dr. Rootenberg was concerned about acts involving severe violence. The respondent had a history, the doctor pointed out, of failing to consistently follow through with or complete treatment programs. Relatedly, the respondent failed to make stable lifestyle choices. And the respondent’s chronic substance abuse exacerbated and perpetuated his risk of violent recidivism.
[31] Dr. Rootenberg gave evidence that the respondent was a “high risk” offender. His risk of violence is chronically elevated and at its highest in the context of active substance use, which leads to disinhibition, impulsivity, and poor judgment.
[32] In his report and testimony, Dr. Rootenberg considered whether some measure less than an indeterminate sentence could adequately protect the public against the respondent’s violent recidivism. The doctor characterized risk as contextual, dependent on the treatment and supervision put in place. Because of the respondent’s decade long history of offences, his risk factors, and his history of difficulties with supervision and treatment, high levels of risk management would be necessary to manage the respondent’s risk were he to be released into the community. Intensive treatment in custody, followed by intensive supervision and further treatment in the community were necessary to manage that risk.
[33] In outlining the treatment and supervision which may assist in managing the respondent’s risk, Dr. Rootenberg explained that the respondent should receive an “adequate” dose of intensive treatment, including cognitive behavioural therapy for his Antisocial Personality Disorder, relapse prevention and monitoring for his substance abuse, and a structured lifestyle to address his poor coping methods and unstable lifestyle. It was unclear whether any treatment success would translate into an absence of recidivism in the community without further external controls on the respondent’s behaviour.
[34] In his report, Dr. Rootenberg summarized his opinion about whether some lesser measure than an indeterminate sentence could adequately protect the public against the respondent’s violent recidivism in these words:
In summary, Mr. Straub appears to be an individual at a high risk of violence, and there appears to be a substantial risk that this violence may be of a serious nature. It appears that there is the possibility of eventual control of that risk in the community on an LTSO, but that is largely dependent upon Mr. Straub demonstrating a much more diligent and concerted effort than he has previously demonstrated.
[35] In assessing the reasonableness of eventual control of the respondent’s risk in the community, Dr. Rootenberg listed several factors he considered relevant:
i. that the respondent receive federal treatment based on RNR (risk, need, responsivity) principles;
ii. that the respondent enter the community under supervision at a community correctional centre;
iii. that the respondent’s treatment continue in the community to prevent erosion of any gains;
iv. that the respondent be closely supervised in the community and breached for minor infractions;
v. that any relapse into substance abuse be used for further treatment of his criminogenic risk factors; and
vi. that the respondent’s risk would not be attenuated by age at expiry of an LTSO since the acuity of a personality disorder traits does not tend to diminish until late 40s.
The Reasons of the Sentencing Judge
[36] In his reasons for sentence, the sentencing judge said that he placed the greatest weight on the opinions of Dr. Rootenberg and Dr. Arrowood in reaching his decision. He quoted Dr. Rootenberg’s summary and final opinion:
It appears that there is the possibility of eventual control of that risk in the community on a LTSO, but that is largely dependent upon Mr. Straub demonstrating a much more diligent and concerted effort than he has previously demonstrated.
[37] The sentencing judge focused on the respondent’s actions rather than his words, because he considered the respondent not a reliable historian. Among the factors the sentencing judge considered in reaching his conclusion that a sentencing disposition lesser than an indeterminate sentence was appropriate were:
i. the respondent’s interest in help reflected in his completion of his High School Diploma while in pre-disposition custody;
ii. the lack of any significant cognitive difficulties which would impede the respondent’s ability to engage in treatment;
iii. the fact that the respondent had never been sentenced to a term of federal custody, thus never had the opportunity to benefit from the different and more intensive programming available in CSC facilities;
iv. the structure and enforcement resources available under an LTSO;
v. the recommendations of Dr. Rootenberg of terms and conditions of any future release plans; and
vi. the early opportunity to address the risk of relapse under an LTSO.
[38] The sentencing judge concluded that a lengthy penitentiary term, together with an LTSO, was the least intrusive sentence that could meet the enhanced sentencing objective of protecting the public. He said:
I have considered the totality of the evidentiary record at this hearing. I am satisfied that the overall sentence can adequately protect the public. The respondent has the ability to participate in, and benefit from, treatment. Dr. Rootenberg’s report sets out a detailed plan for managing the respondent in the community. The CSC has the tools to manage and enforce a release plan in the community.
The Arguments on Appeal
[39] The Crown appellant alleges three specific errors in the reasoning of the sentencing judge:
i. failure to give effect to the purpose of dangerous offender proceedings under Part XXIV of the Criminal Code;
ii. failure to consider evidence that the risk of the respondent’s recidivism could not be controlled in the community; and
iii. failure to apply the proper standard in determining the sentence imposed.
[40] The purpose of Part XXIV, the Crown contends, is to protect society from a class of offenders who are dangerous in light of their past, present, and likely future conduct. The respondent is a high-risk offender, a threat to the safety of the public. There is a high likelihood he will engage in harmful recidivism. His behaviour is intractable.
[41] The sentence imposed, the Crown submits, represents a leap of faith by the sentencing judge, a hope based on unpredictable contingencies that fail to respect the purpose of Part XXIV. There was no evidence that the respondent could be successfully treated within a definite period of time. He had consistently refused any available treatment offered to him previously. The psychiatric opinion was contingent on the respondent availing himself of available treatment. This confused the potential to benefit from available treatment with a reasonable expectation that the respondent’s risk could be managed in the community.
[42] The Crown says that the sentencing judge, emphasizing the absence of any significant cognitive difficulties in the respondent, imposed a penitentiary sentence to provide the respondent with an opportunity to participate in the treatment on offer by the CSC. That the respondent, a devoted abstainer from treatment programs, would even participate was purely speculative. Manageability of the respondent’s risk depends upon him engaging in treatment, willing to be supervised, complying with monitoring, and changing his anti-social views. His record refutes any of these prospects.
[43] The sentencing judge failed to consider evidence that the respondent’s risk of recidivism could not be controlled in the community. Risk management requires an assessment of both the treatability and manageability of an offender’s behaviour. This includes evidence of treatment avoidance, unresponsiveness to treatment, breaches of court orders, lack of motivation, continued involvement in high-risk conduct, or a serious personality disorder and an elevated likelihood of violent recidivism. The sentencing judge failed to consider the diminished strength of Dr. Rootenberg’s opinion because of the respondent’s conduct during the dangerous offender hearing involving threats to assault and rape a correctional officer and his former counsel. In addition, Dr. Rootenberg acknowledged that his opinion about the prospect of controlling the respondent in the community depended on the respondent actively engaging with treatment. There was no evidence the respondent had ever done so or was even serious about doing so in the future.
[44] The Crown says that Dr. Rootenberg did not support the respondent’s release into the community on an LTSO without intensive treatment in the penitentiary. What was required were several years of dedicated treatment. The sentencing judge failed to consider this significant qualification on Dr. Rootenberg’s opinion.
[45] In reaching his conclusion that a determinate sentence and an LTSO was the appropriate disposition, the sentencing judge referred to the “reasonable possibility” that the respondent’s risk could be controlled in the community. This is not the standard that s. 753(4.1) directs the hearing judge to apply. The standard is “reasonable expectation”, a higher standard than “reasonable possibility”. A “reasonable possibility” describes something that may happen. A “reasonable expectation” refers to a belief that something will happen. Application of the wrong standard is fatal to the disposition made by the sentencing judge. A sentence of indeterminate detention in a penitentiary should be substituted.
[46] The respondent submits that an indeterminate sentence for an offender serving his first Federal sentence would violate the fundamental principle of proportionality. The sentence imposed gives effect to this principle and meets the standard required for a lesser sentence under s. 753(4.1). It provides ample opportunity for intensive treatment and close supervision over the term of the LTSO. The sentencing judge made no legal error and reached a reasonable conclusion grounded in the evidence adduced at the hearing.
[47] The respondent accepts that s. 753(4.1) directs that an indeterminate sentence be imposed on a dangerous offender unless the evidence adduced at the hearing demonstrates a reasonable expectation that a lesser measure, such as the composite sentence imposed here, will adequately protect the public against the offender’s commission of murder or a serious personal injury offence. The sentence imposed must be the least restrictive means that will provide the required level of protection. The level of protection required is adequate, not perfect.
[48] The framework the sentencing judge should apply in determining the proportionate sentence is akin to ascending the steps of a ladder from the least to most restrictive. The governing focus is on risk management, not complete elimination of the risk which would mandate an indeterminate sentence in all cases. The sentencing decision involves the application of the principles in the general sentencing provisions of Part XXIII, but without losing sight of Part XXIV which assigns paramountcy to the protection of the public. The sentencing judge repeatedly referred to the protection of the public as the paramount principle of sentencing governing his decision as he applied the principles enshrined in Part XXIII as he was required to do.
[49] In his analysis, the respondent continues, the sentencing judge considered the entirety of the relevant evidence. This included the report and testimony of Dr. Rootenberg, neither of which was diminished or qualified during the course of the hearing. He maintained his emphasis on the need for intensive treatment and strenuous supervision as a means of controlling the risk of the respondent’s violent recidivism. He was alive to the role of the CSC but was not deferential to it as the appellant suggests.
[50] The respondent accepts that the standard imposed by s. 753(4.1) is a reasonable expectation that a lesser measure than an indeterminate sentence will adequately protect the public against the defined recidivistic risk, and not reasonable possibility as Dr. Rootenberg characterized it. The statutory standard, the respondent agrees, suggests a likelihood or belief that something would happen, not a possibility that it might happen. However, the respondent emphasizes that the sentencing judge never actually used the term reasonable possibility himself. Rather, he referred to it only when quoting from Dr. Rootenberg’s report.
[51] Findings of intractability and unmanageability at the designation stage of a dangerous offender application, the respondent submits, do not mandate an indeterminate sentence in all cases. The presiding judge must still determine whether there is a reasonable expectation that a lesser measure will adequately protect the public. In this case, the sentencing judge examined the evidence, correctly stated the law, and determined that the lesser measure he imposed met the standard required. He made no error in doing so. The sentence imposed should not be disturbed.
The Governing Principles
[52] Part XXIV of the Criminal Code authorizes and governs the conduct of dangerous offender proceedings. The statutory scheme has two stages. Section 753(1) lists the statutory requirements that must be met before a court can designate an offender, convicted of a serious personal injury offence, as a dangerous offender. This is the designation stage. Sections 753(4) and (4.1) govern the second stage of the proceedings. They relate to the sentencing of dangerous offenders, the penalty stage: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at paras. 13‑15.
[53] We are not concerned with the designation stage here. The respondent was designated a dangerous offender under ss. 753(1)(a)(i) and (ii) of the Criminal Code. No appeal has been taken from that designation. Our concern is with the penalty stage of the proceedings.
[54] Section 753(4) of the Criminal Code provides an exhaustive catalogue of the sentencing options available to judges and courts when an offender has been designated as a dangerous offender. Section 753(4.1) codifies the exercise of the sentencing judge’s discretion under s. 753(4): Boutilier, at para. 60.
[55] Part XXIV contains its own appellate rights and prescribes the remedies available on appeal. Section 759 authorizes appeals by the offender and the Attorney General from “a decision made under this Part”. Where, as here, the appellant is the Attorney General, s. 759(2) limits the right of appeal to “any ground of law”. An assessment of evidence may amount to an error of law where that assessment is based on a wrong legal principle: H.(J.M.), at para. 29. Alleged errors of law are assessed on a standard of correctness: Boutilier, at para. 81.
[56] Sections 753(4) and (4.1) work together at the penalty stage of dangerous offender proceedings.
[57] Section 753(4) creates an exhaustive list of the available punishments. These may be summarized as:
i. an indeterminate sentence of imprisonment in a penitentiary;
ii. a composite sentence consisting of a term of imprisonment of at least two years, followed by an LTSO for not more than ten years; or
iii. a determinate sentence for the predicate serious personal injury offence(s).
[58] Section 753(4.1) codifies the exercise of the sentencing judge’s discretion in light of the general purpose of the dangerous offender regime, to protect the public from offenders who have demonstrated a very high degree of harmful recidivism. To properly exercise their discretion, sentencing judges must impose the least intrusive sentence required to achieve the primary purpose of the dangerous offender scheme – the protection of the public from offenders with a very high likelihood of violent recidivism: Boutilier, at paras. 60, 65.
[59] Dangerous offender proceedings are sentencing proceedings. This requires the sentencing judge to apply the sentencing objectives, principles, and mandatory guidelines of Part XXIII, in particular, ss. 718-718.2. Errors in the application of these principles are reviewable by appellate courts: Boutilier, at paras. 53-54. However, Part XXIV proceedings are not the same as conventional sentencing. Under Part XXIV, the sentencing judge must assign paramount consideration to the protection of the public as s. 753(4.1) requires. Parliament has decided that protection of the public is an enhanced sentencing objective for those who have been designated as dangerous offenders: Boutilier, at paras. 55-56; R. v. Pelly, 2021 SKCA 50, 403 C.C.C. (3d) 127, at para. 28.
[60] Section 753(4.1) guides the discretion of the sentencing judge in dangerous offender proceedings to determine the fittest sentence based on the evidence adduced on the hearing. This requires the sentencing judge to conduct a thorough inquiry into the prospect of control in the community: Boutilier, at paras. 65, 68.
[61] The framework a sentencing judge should apply in exercising their discretion under s. 753(4.1) to determine the fittest sentence to impose upon a dangerous offender requires that they first exhaust both less intrusive sentencing options. This is because the proper exercise of discretion under s. 753(4) requires that the judge impose the least intrusive sentence required to reduce the public threat posed by the offender to the level statutorily required: Boutilier, at paras. 60, 70; R. v. Awasis, 2020 BCCA 23, 385 C.C.C. (3d) 369, at para. 72, leave to appeal refused, [2020] S.C.C.A. No. 225. This is also because s. 753(4.1) does not impose an onus, create a rebuttable presumption, or direct mandatory sentencing. An indeterminate sentence is but one of the sentencing options available for dangerous offenders: Awasis, at paras. 72, 73; Boutilier, at para. 58.
[62] Section 753(4.1) mandates imposition of an indeterminate sentence unless there is a reasonable expectation that a lesser sentence will adequately protect the public against the dangerous offender’s violent recidivism. The standard to be applied to the evidence adduced at the hearing is whether there is a reasonable expectation that a lesser measure will adequately protect the public against the offender’s violent recidivism. The standard is reasonable expectation, not reasonable possibility. The term “reasonable expectation” suggests a “likelihood”, “a belief that something would happen”, or “a confident belief, for good and sufficient reasons”: Pelly, at para. 35; R. v. D.J.S., 2015 BCCA 111, at para. 30, leave to appeal refused, [2015] S.C.C.A. No. 194; R. v. Sanderson, 2018 MBCA 63, at para. 20; Awasis, at para. 73. The standard “reasonable expectation” is more stringent than “reasonable possibility”: R. v. Groves, 2020 ONCA 86, at para. 15.
[63] Treatability is a relevant factor at the penalty stage of dangerous offender proceedings. But evidence of treatability must extend beyond speculative hope about successful treatment. The evidence must give some indication that the offender can be treated within an ascertainable time: Awasis, at para. 73, citing, R. v. Little, 2007 ONCA 548, 87 O.R. (3d) 683, at para. 42, leave to appeal refused, [2008] S.C.C.A. No. 39. See also, Boutilier, at para. 45.
[64] Manageability of a dangerous offender’s behaviour is also a factor to be considered at the penalty stage. On this issue, the following is relevant: evidence that the offender avoided treatment, failed to respond to or terminated treatment, breached court orders, lacked motivation, continued to be involved in high-risk conduct, had a serious personality disorder, and was a high risk to engage in violent recidivism. See R. v. K.P., 2020 ONCA 534, 152 O.R. (3d) 145, at para. 13, citing, R. v. Radcliffe, 2017 ONCA 176, at paras. 64-65, leave to appeal refused, [2017] S.C.C.A. No. 294. The moral culpability of a dangerous offender also remains relevant at the penalty stage of the proceedings: Pelly, at para. 49; Boutilier, at para. 63.
[65] The nature and duration of a dangerous offender’s prior conduct may provide cogent evidence of how that offender would act in the future, given the opportunity to do so: Groves, at para. 6. Likewise, the manageability of the offender under supervision in the community.
[66] Where an appellate court concludes that the sentencing judge has erred in imposing a sentence, the court may impose a sentence that may be imposed by the trial court under Part XXIV: Criminal Code, s. 759(3)(a)(i).
The Principles Applied
[67] As I will explain, I am satisfied that the appellant has demonstrated that the sentencing judge erred in law in concluding that a lesser measure than an indeterminate sentence – a composite sentence – met the standard required under s. 753(4.1) to warrant its imposition. It follows that the deference usually due to the exercise of discretion in sentencing falls away and permits this court to consider afresh what constitutes a fit disposition under Part XXIV.
[68] In my respectful view, the error of law in this case consisted of the sentencing judge assessing the whole of the evidence against the wrong legal standard in deciding whether a lesser measure than an indeterminate sentence satisfied the standard required by s. 753(4.1).
[69] I accept as a basic principle that, absent an error of law, a judge’s assessment of the evidence adduced in a proceeding is beyond the reach of appellate review; that review is limited to grounds of law: H.(J.M.), at para. 30. On the other hand, it is an error of law to assess that same corpus of evidence on the basis of the wrong legal standard: H.(J.M.), at para. 29.
[70] The legal standard imposed by s. 753(4.1) for a lesser measure than an indeterminate sentence to be imposed on the dangerous offender is whether there is a reasonable expectation that the lesser measure will adequately protect the public against commission by the offender of murder or a serious personal injury offence. This standard refers to a likelihood, a belief something will happen, not that something might happen. And that something is that the lesser measure will adequately protect the public against the dangerous offender’s violent recidivism.
[71] A reasonable expectation is not a reasonable possibility. A reasonable possibility sets the bar for a lesser measure too low to ensure adequate protection of the public. Reasonable possibility was the standard applied by Dr. Rootenberg in reaching his conclusion.
[72] This was also the standard adopted by the sentencing judge in deciding that the lesser measure of a composite sentence would provide adequate protection for the public against the respondent’s violent recidivism. Granted, the sentencing judge only used the term reasonable possibility when summarizing or quoting from Dr. Rootenberg’s report. But Dr. Rootenberg’s evidence significantly informed his reasons. And the sentencing judge determined a composite sentence was adequate on the basis of factors that supported only an “opportunity” or “ability” to participate in treatment, rather than any expectation that the respondent actually would.
[73] The sentencing judge therefore assessed the evidence against a less rigorous standard than s. 753(4.1) requires. As such, his conclusion about the adequacy of a lesser measure than an indeterminate sentence to satisfy the required degree of public protection cannot stand. Likewise, the composite sentence imposed to give effect to that finding.
[74] When the proper standard is applied to the analysis required by s. 753(4.1), the evidence falls short of what is necessary to conclude that there is a reasonable expectation that a lesser measure than an indeterminate sentence will adequately protect the public.
[75] The evidence of Dr. Rootenberg, upon which the sentencing judge relied most heavily, was itself based on the same erroneous standard of reasonable possibility, rather than the more stringent reasonable expectation. Even if accepted, it cannot ascend to the standard required. All the more so when Dr. Rootenberg acknowledged that “the possibility of eventual control” of the high risk of violence and substantial risk of serious violence was “largely dependent” on the respondent demonstrating “a much more diligent and concerted effort than he has previously demonstrated”.
[76] A fair reading of Dr. Rootenberg’s report and evidence reveals that management under a composite sentence would require prolonged intensive treatment during the custodial portion of the sentence and an equivalent level of long-term supervision. Both are entirely dependent on the respondent’s willing participation and adherence.
[77] The respondent has been treatment avoidant throughout his over a decade‑long involvement with the criminal justice system. He has been convicted of more than six dozen criminal offences, including several involving actual or threatened violence against others. He pays no heed to court orders, regularly offends while bound by probation orders, and has been convicted of some 20 offences of failure to comply.
[78] During his incarceration awaiting conclusion of the dangerous offender application, the respondent incurred repeated institutional misconducts. These included threats of violence against correctional officers and sexual violence against female correctional officers. He communicated grave threats of personal and sexual violence to his former trial counsel. He sent a letter to the trial Crown expanding upon his plans for one of his victims of the predicate offences had he not been interrupted by two passers-by, one of whom he tried to stab with a large butcher knife.
[79] The respondent has a serious personality disorder, as well as a substance use disorder that enhances his risk of recidivistic violence. Personality disorders are notoriously treatment resistant and the respondent has demonstrated no real insight into the need for any kind of treatment.
[80] The record, as a whole, does not provide evidentiary support for a conclusion that there is a reasonable expectation that a lesser measure than an indeterminate sentence will adequately protect the public against the respondent’s violent recidivism.
Disposition
[81] I would allow the appeal, set aside the sentence imposed by the sentencing judge, and impose a sentence of detention in a penitentiary for an indeterminate period. In accordance with s. 759(6) of the Criminal Code, the sentence of indeterminate detention is deemed to have commenced on January 23, 2020, the date on which the original sentence was imposed at the conclusion of the dangerous offender hearing.
Released: January 24, 2022 “D.W.” “David Watt J.A.” “I agree. G. Pardu J.A.” “I agree. Gary Trotter J.A.”
